What is Maintenance?
Maintenance is the obligation to provide another person, such as a minor child, with housing, food, clothing, education and medical care.
Who has the Duty to Maintain?
A biological father (married or unmarried), a mother, blood relative or adoptive parent have the duty to maintain a minor child. The duty to maintain is not simply limited to children but includes other family members as well. In the event that a family member requires to be maintained, he/she can claim maintenance when the following conditions have been met:
1. There must be a NEED to be maintained;
2. The person from whom the maintenance is claimed must be able to afford same/have the MEANS;
3. The claim must be REASONABLE.
What expenses may be claimed?
Reasonable expenses necessary to support a child or other family member who has the right to be maintained includes the provision for, inter alia, food, clothing, medical, housing, and education.
In the event of an unborn child, the court may also order the father to contribute to the payment of laying-in expenses and reasonable maintenance for the child from date of birth until the child attains majority or becomes self-supporting.
Where to Apply for a Maintenance Order?
· Application is made at the Magistrate’s court in the area where the child resides;
The Process:
· Complete Form A: Application for a maintenance order (J101) and submit same together with proof of your monthly income and expenses to court with your completed Form A.
· The maintenance officer will issue a directive requesting the parties to meet in order to conduct an investigation, alternatively to mediate.
· If mediation is successful the parties will sign a Form G – Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998 [Regulation 6].
· The order will then be made an order of court.
· If mediation is unsuccessful, the matter will be postponed for trial.
Failure to comply with a Maintenance Order?
When a person fails to make payment of maintenance in terms of a court order, and the order remains unsatisfied for a period of 10 (ten) days, the Applicant may apply to court ordinarily where the Respondent is resident to issue a warrant of execution against the Respondent’s property, apply for an attachment of emoluments, or attachment of debt.
Failure to pay maintenance is a criminal offence and if proven that the Respondent is mala fide in not complying with a maintenance order, the Respondent can be fined or imprisoned for a period up to a year, or both.
Need assistance to apply for a maintenance order, alternatively apply to court for a warrant of execution/attachment of emoluments/attachment of debt, or laying a criminal charge – contact our Family Law Department for assistance and guidance from our experienced attorneys.
Contact
Tel: 021 944 3072 /3011
